TM Nailing the Baby Bar - - Practical Step Press · Nailing the Baby Bar Tim Tyler Ph.D. Attorney at Law HOW TO WRITE ESSAYS FOR THE CALIFORNIA FIRST-YEAR LAW STUDENT EXAM WHAT to

Nailing the Baby Bar

Tim Tyler Ph.D. Attorney at Law

HOW TO WRITE ESSAYS FOR THE CALIFORNIA FIRST-YEAR LAW STUDENT EXAM

WHAT to Say and HOW to Say It!

NAILING THE BAR

TM

Table of Contents

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Table of Contents

CHAPTER 1: WHY ESSAYS ARE CRITICAL.........................................................................................................1

CHAPTER 2: IDENTIFY THE AREA OF LAW.......................................................................................................3

CHAPTER 3: OUTLINE YOUR ANSWER AND COUNT THE ISSUES! .............................................................4

CHAPTER 4: ISSUE SPOTTING................................................................................................................................7

CHAPTER 5: NON-ISSUES, RED HERRINGS AND SPLITS ..............................................................................14

CHAPTER 6: A WARNING ABOUT EXAMPLE ANSWERS ..............................................................................20

CHAPTER 7: ESSAY TIME BUDGETING MECHANICS....................................................................................21

CHAPTER 8: ORGANIZING THE ANSWER.........................................................................................................23

CHAPTER 9: STATING THE ISSUE .......................................................................................................................28

CHAPTER 10: NAILING THE ELEMENTS – THE HEART OF THE ESSAY..................................................31

CHAPTER 11: DON'T GIVE "CONCLUSIONARY" ANALYSIS .......................................................................36

CHAPTER 12: DON'T "RESTATE FACTS" ..........................................................................................................37

CHAPTER 13: AVOID "PADDLING" .....................................................................................................................38

CHAPTER 14: TEST TAKING MECHANICS ........................................................................................................39

CHAPTER 15: THE CALIFORNIA BABY BAR FORMAT..................................................................................41

CHAPTER 16: ESSAY ANSWER FORMATS – WHAT TO SAY AND HOW TO SAY IT ...............................43 FOUR PLOYS TO SAVE YOU ON AN EXAM: ...............................................................................................................44

CHAPTER 17: ANSWERING CONTRACT AND UCC QUESTIONS .................................................................45 Practice Question 17-1...........................................................................................................................................67 Practice Question 17-2...........................................................................................................................................68 Practice Question 17-3...........................................................................................................................................69 Practice Question 17-4...........................................................................................................................................70 Practice Question 17-5...........................................................................................................................................71 Practice Question 17-6...........................................................................................................................................72 Practice Question 17-7...........................................................................................................................................73

CHAPTER 18: ANSWERING TORT QUESTIONS................................................................................................74 Practice Question 18-8...........................................................................................................................................90 Practice Question 18-9...........................................................................................................................................91 Practice Question 18-10.........................................................................................................................................92 Practice Question 18-11.........................................................................................................................................93 Practice Question 18-12.........................................................................................................................................94 Practice Question 18-13.........................................................................................................................................95 Practice Question 18-14.........................................................................................................................................96

CHAPTER 19: ANSWERING CRIMINAL LAW QUESTIONS............................................................................97 Practice Question 19-15.......................................................................................................................................114 Practice Question 19-16.......................................................................................................................................115

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Practice Question 19-17 ...................................................................................................................................... 116 Practice Question 19-18 ...................................................................................................................................... 117 Practice Question 19-19 ...................................................................................................................................... 118 Practice Question 19-20 ...................................................................................................................................... 119

CHAPTER 20: CONCLUSION................................................................................................................................ 120

APPENDIX A: RULES AND DEFINITIONS FOR............................................................................................... 121

CONTRACTS, TORTS AND CRIMES .................................................................................................................. 121

APPENDIX B: SAMPLE ANSWERS ..................................................................................................................... 144 Sample Answer 17-1: Contract Formation.......................................................................................................... 144 Sample Answer 17-2: UCC and Acceptance Varying Terms ............................................................................. 147 Sample Answer 17-3: Third Parties .................................................................................................................... 150 Sample Answer 17-4: Defenses .......................................................................................................................... 154 Sample Answer 17-5: Common Law Modification, Breach and Remedy .......................................................... 158 Sample Answer 17-6: Common Law Remedies ................................................................................................. 161 Sample Answer 17-7: UCC Formation, Breach and Remedy ............................................................................. 165 Sample Answer 18-8: Intentional Torts .............................................................................................................. 169 Sample Answer 18-9: Negligence....................................................................................................................... 172 Sample Answer 18-10: Product Liability............................................................................................................ 176 Sample Answer 18-11: Defamation .................................................................................................................... 180 Sample Answer 18-12: Invasion of Privacy........................................................................................................ 183 Sample Answer 18-13: Nuisance ........................................................................................................................ 185 Sample Answer 18-14: Miscellaneous Torts ...................................................................................................... 187 Sample Answer 19-15: Attempt, Homicide, Res Gestae, Depraved Heart ......................................................... 189 Sample Answer 19-16: Accomplice and Conspiracy Liability ........................................................................... 194 Sample Answer 19-17: Murder, Mistake of Law, Self-Defense, Insanity .......................................................... 197 Sample Answer 19-18: Arson, Larceny, Embezzlement, Larceny by Trick ....................................................... 199 Sample Answer 19-19: Attempt, Mistake of Fact, Mistake of Law.................................................................... 201 Sample Answer 19-20: Murder, Murder, Murder ............................................................................................... 204

INDEX ........................................................................................................................................................................ 207

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Chapter 3: Outline Your Answer and COUNT THE ISSUES!

The second critical step in answering any essay question, after confirming the area of law, is to read the question and COUNT THE ISSUES to be discussed. The issue outline is simply a list of the issues you will discuss, in the order you will discuss them. Make it "skeletal" in your own "personal shorthand." Don't waste time writing out detailed issue statements. Jot down case names and special rules like "Palsgraf" and "Statute of Frauds." Jot down a few facts if you want, but DON’T WASTE TIME writing out every important fact. 2 CONSIDER which issues you MUST discuss, which you MIGHT discuss and which are "unintended issues" that the grader does not want to hear about. Decide which issues are so minor, marginal, lacking in facts or attenuated that you should not discuss them. Look for specific wording in the question that indicates which issues are "required issues." RE-READ THE FACTS to be sure you are not missing issues. Don’t look so hard for hidden issues that you miss the issues that are obvious. 3 Rewrite the outline as necessary, eliminating issues, or reordering issues. Usually you should list the issues in the same order they arise in the fact pattern, but there are exceptions. For example, discuss intentional torts before negligence, and discuss murder before manslaughter. SEPARATE THE ISSUES AND THE PARTIES on Tort and Criminal law essays discussing all rights, liabilities and remedies of each party in succession. FOLLOW THE CALL. On a one-hour question outlining usually requires between 10 and 15 minutes. HOWEVER, if the call of the question actually lists the issues you are to discuss, then this outline process can (and must) be abbreviated. If the issues are listed for you, discuss all “sub-issues” that seem necessary and obvious but DO NOT DISCUSS ISSUES THAT ARE COMPLETELY IRRELEVANT TO THE CALL. If the call of the question states the things to discuss, DISCUSS WHAT IT SAYS AND EVERYTHING DIRECTLY RELEVANT. 4

If the CALL says "what rights and remedies?" you MUST be sure to discuss the REMEDIES of the parties and not just the causes of action. If the CALL says, "what defenses might be raised?" you MUST discuss defenses as full issues. If the CALL describes A, B and C and then asks about the rights of B against C, DO NOT discuss the rights of A because the CALL only asks about the rights of B.

2 Some people advocate copying all of the important facts from the essay question to the answer outline. That may help some students but to me it just seems a waste of time. 3 This is a common error. Don’t look so hard for fleas you forget to talk about the elephant. 4 Often you have to be sort of a “mind reader” to figure out what the examiner wants to hear about.

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Chapter 9: Stating the Issue An “issue” is a legal or equitable claim, charge, plea or defense (usually disputed or disputable) that can be settled by a single rule or definition of law that requires proof of a limited number of “legal elements”. Phrase the Issue for an EASY DETERMINATION. The best phrasing for the issue statement depends on the area of law: Set up your issue as a "straw man" so that you can easily "knock it down" by identifying the elements, showing the facts support the elements, and thereby go on to consider other issues. Avoid phrasing an issue in a way that forces a conclusion that necessarily precludes discussion of other necessary issues. Issues should be narrow and not so overbroad they turn on more than one rule of law. Good Issues:

• Offer by Bob on May 1? • Can Tom be charged with burglary? • Can Al claim self-defense? • Nuisance? • Promissory estoppel?

Overbroad Issues:

• Rights of Bob? • Valid contract? • Defenses of Dick? • Crimes of Paul?

Issues Structured by Call. If the question has a structured call, reflect that call in your answer with the “issues” organized to support that overall organization. For example, if the question asks, "Discuss the following issues:

a. What are the rights and remedies of B? b. What defenses can A raise? "

Your answer should be structured with the issues like this:

B v. A a. Rights and Remedies of B 1. (first issue)

Chapter 12: Don’t “Restate Facts”

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Chapter 12: Don't "Restate Facts" After law students are admonished to "use the facts" they are then chastised for "restating the facts". How can you "use the facts" without "restating the facts"? What does this mean? The bad habit of "restating the facts" simply means that the student simply repeats the facts like a parrot without providing any analysis or explanation relating those facts to the elements of the rule that needs to be proven. The identifying characteristic of an answer that simply restates facts is that the word "because" never appears BECAUSE no ELEMENTS are referred to. An analysis which "simply restates facts" jumps to a conclusion that the issue is proven by reference to the facts without reference to the legal elements of the rule. Example: Suppose the question says,

”Bob forced the lock on the window and climbed into the house in the moonlight to take the purse." An answer with UNNECESSARY RESTATING OF FACTS would be -- "1. BURGLARY? Under the common law BURGLARY was the breaking and entering of the dwelling of another in the night with an intent to commit a felony. Here Bob "forced the lock" on the "window" and "climbed into the house" in the "moonlight" to "take the purse," so Bob can be charged with burglary.

The problem with this answer is that it jumps to a conclusion by simply repeating all the facts, but it does not relate any particular ELEMENT of law to any particular fact. For example, it says "Bob forced the lock" but it does not explain that fact is important because it proves the element of "breaking". The explanation that Bob's forcing of the lock is important because it is evidence supporting the element of breaking is absent from the answer. If an answer refers to a lot of "facts" but never uses the word "because" then it is unacceptable. Follow the Yellow Brick Road. The simple, mechanical way to improve essay analysis is to remember what Dorothy said when she went down the Yellow Brick Road in the Wizard of Oz -- "BECAUSE, BECAUSE, BECAUSE, BECAUSE, BECAUSE." If you put one "because" in your analysis for each element in your rule, it will simply force you to cite BOTH FACTS AND ELEMENTS. This approach automatically, methodically, mechanically and simply forces you to write a better essay. It works for law school and it works for the Bar exams.

Chapter 15: The California Baby Bar Format

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Chapter 15: The California Baby Bar Format The California First-Year Law Students' Examination (the FYLSX, or “Baby Bar Exam”) is required for certain law students upon completion of the first year of law school. Law students generally must take the FYLSX in the following situations:

1) They have not graduated from a 4-year university (do not have a “bachelor’s degree”); 2) They are enrolled in a correspondence or “distance learning” law school; 3) They are enrolled in an “unaccredited” law school (a law school that is not accredited by the California Bar Association and not “approved” by the American Bar Association); 4) They have finished the first year of law school with less than a “C” average (less than a 2.0 GPA); OR 5) They have finished the first year of law school and their law school requires them, for any other reason, to take the FYLSX as a requirement for continued study.

The exam is a one-day exam consisting of four essay questions in four hours, one hour per question, in the morning session from 8:00 a.m. to noon., and 100 multiple choice questions on the first-year subjects of contracts, torts and criminal law in three hours in the afternoon, from 1:00 p.m. to 4 p.m. For many years the FYLSX exam essay questions have consisted of:

1) A COMMON LAW CONTRACT question, 2) A TORT question, 3) A CRIMES question, and 4) EITHER

a) CONTRACTS-TORTS CROSSOVER, b) PRODUCTS LIABILITY, or c) UNIFORM COMMERCIAL CODE (UCC) question (Articles 1 and 2- Sales).

For many years the crimes question always involved a MURDER issue. That pattern was broken recently when one FYLSX exam did not involve a murder. PRODUCTS LIABILITY situations are also frequently tested on the FYLSX. In contrast they are seldom tested on the California General Bar Exam (GBX). However, that pattern was also broken recently when one GBX exam did have a products liability question. For UCC questions there is only one section in Article 1 that you should be particularly aware of, UCC 1-206. That section requires a “writing” for any contract for the sale of “personal property that is not goods”. That means a contract for the sale of intangible personal property such as song rights, play rights, screen rights, patent rights, copyrights and formulas. Even though a song, play, script, patent, blueprint, or formula may be written on paper, and paper can be “moved”, when there is a contract for the sale of such rights it is not a sale of “goods” but rather a sale of “personal property that is not goods” and UCC 1-206 applies.

Chapter 17: Answering Contract and UCC Questions

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Chapter 17: Answering Contract and UCC Questions There are several basic types of contract essay questions. These types are often combined, and some issues can be skipped in some questions that do not call for their discussion. Some people recognize 4 basic contract question formats, but in this book I recognize 6 basic types:

1) FORMATION QUESTIONS – Raise issues of whether contract ever formed at all. Was there an OFFER? ACCEPTANCE? Manifestation of INTENT? Was the contract for a LEGAL PURPOSE? Supported by CONSIDERATION? Between parties with LEGAL CAPACITY?

2) TERMS DISPUTES -- What were the terms of the contract? Sufficiently CERTAIN that a court can enforce? Was there a MODIFICATION supported by consideration? Is a term or promised performance a MATERIAL CONDITION? Is a given term or promise INCLUDED or EXCLUDED from the agreement?

3) THIRD PARTY QUESTIONS -- Who has the right to bring an action? Were there THIRD-PARTY BENEFICIARIES? Was there a VALID ASSIGNMENT? Was there a VALID DELEGATION?

4) DEFENSE QUESTIONS – Focus on defense issues. Statute of Frauds satisfied? Lack of consideration? Illegal purpose? Rights of underage party? Fraud? Duress?

5) BREACH QUESTIONS – Focus on the issue of who breached first? Anticipatory breach? Major or Minor breach? Waiver?

6) REMEDY QUESTIONS – Raise issues of what each party can recover and how.

SPECIFIC PERFORMANCE? RESTITUTION (quantum meruit concepts)? RIGHT TO CURE? COVER? FAILURE TO MITIGATE? ESTOPPEL? SAVING DOCTRINES?

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COMMON CONTRACT AND UCC ISSUES AND ANSWERS FOLLOW THE CALL of the question. But if the call is general, such as "discuss the rights and remedies," list the issues as follows: 1. Does UCC apply? (Important! Always issue #1 if UCC applies, but maybe a “non-issue”

otherwise!) Under contract law UCC Article 2 controls contracts for the sale of GOODS. Goods are movable things at the time of identification to the contract. 18 Otherwise only the common law controls. Here the agreement was NOT (is) for a sale of goods, because …. Therefore, only the common law (UCC) determines the rights of the parties here.

2. Are the parties MERCHANTS? (Important! Always issue #2 if UCC applies, but otherwise it is never an issue). Under the UCC a MERCHANT is a person who trades in or otherwise holds himself out by occupation or otherwise as knowledgeable about the goods of the contract. Further, a principal that employs an agent that is a merchant is held to be a merchant by implication. 19 Here the buyer is (not) a dealer in these goods because … And they are not a merchant by occupation or implication because…Further the seller is (not) a dealer in these goods because… And…Therefore, …

3. Was the communication of [date] an OFFER? (only for a formation question. Watch out for advertisements because they are rarely offers and catalogues are NEVER offers! Skip this altogether if the question says they had an agreement or contract.) Under contract law an OFFER is a manifestation of present contractual intent communicated to the offeree such that an objective person would reasonably believe assent would form a bargain. 20 Important! If ONLY common law go on to say,

At common law a communication was only deemed sufficient to constitute an offer if it specified the parties, subject matter, quantity, price, and time of performance.

18 Be aware, and prepared to say, that special made goods, standing crops, timber, unborn animals and minerals in the land to be removed by the seller are also “goods”. 19 For a person in “business” to be a “merchant” they either have to DEAL in the goods that are the subject of the contract on a regular basis or else they have to be some type of “expert” concerning these goods or employ an “agent” who is an expert in these goods. 20 The reason a “catalogue” is NEVER an offer is that a catalogue is, by definition, a price list without any specification of quantity.

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Chapter 18: Answering Tort Questions There are 5 basic types of tort essay questions; issues can be skipped if the question does not call for their discussion.

1. INTENTIONAL TORTS AND NEGLIGENCE – Intentional torts are deliberate ACTS causing CONFINEMENT, FEAR, OFFENSE or other harm and negligence is a NEGLIGENT act causing harm. If both intentional torts and negligence are suggested by the facts, address the INTENTIONAL TORTS first and the possible defenses. Then address NEGLIGENCE second with the possible defenses to that cause of action.

2. PRODUCTS LIABILITY – Anyone who releases an UNREASONABLY DANGEROUS product into the stream of commerce may be held liable for any personal injury, property damage or other economic losses caused, but the extent of liability depends on the legal theory proven by the plaintiff.

3. DEFAMATION AND INVASION OF PRIVACY –Defamation is a false assertion causing damage to REPUTATION. Invasion of Privacy can be any of four theories for unreasonable acts causing EMBARRASSMENT or INCONVENIENCE.

4. NUISANCE – Nuisance is an unreasonable interference with the plaintiff’s ability to enjoy and use private LAND or else to enjoy the use of PUBLIC resources.

5. MISCELLANEOUS MALICIOUS TORTS -- MALICIOUS PROSECUTION / ABUSE OF PROCESS, INTERFERENCE WITH CONTRACT / INJURIOUS FALSEHOOD, DECEIT, TRADE SLANDER -- Watch out for these. They are often too simple for an entire essay answer so they may be mixed in with intentional torts, negligence or other issues.

Mnemonics for Tort Essays:

• ABC-FITT = The intentional torts – Assault, Battery, Conversion, False imprisonment, Intentional infliction of emotional distress, Trespass to land and Trespass to chattels.

• DARN COPS = The intentional tort DEFENSES. Discipline, Authority of law, Recapture, Necessity, Consent, Others (defense of), Property (defense of), Self (defense of).

• SCRAP = DUTY can be based on Statute, Contract, Relationship, Assumption, and Peril caused (both a TORT and a CRIMES factor).

• CLUB = Slander per se – Crime, Loathsome disease, Unchaste behavior, Business practices

• LAID = Invasion of Privacy – false Light, Appropriation of likeness, Intrusion into privacy, public Disclosure of private facts.

Recommended Tort Essay Answer Strategies:

1. Discuss INTENTIONAL TORTS first and NEGLIGENCE second. 2. Always DEFINE "INTENTIONAL" in the discussion of the first intentional tort. 3. Discuss both intentional torts and negligence UNLESS it is CLEAR there was NO

INTENTIONAL ACT done to cause the tortious event that caused the injury. 4. For ASSAULT and BATTERY be clear you are talking TORT and not CRIMINAL law. 5. BATTERY suggests an issue of ASSAULT and possibly INTENTIONAL INFLICTION. 6. FALSE IMPRISONMENT suggests an issue of INTENTIONAL INFLICTION. 7. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS is only for BYSTANDERS. 8. CONVERSION suggests TRESPASS TO CHATTELS.

Chapter 18: Answering Tort Questions

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9. DEFAMATION suggests NEGLIGENCE; separate analysis is often needed. 10. DEFAMATION and PRIVACY INVASION may be in the same question, but often not. 11. MALICIOUS PROSECUTION may suggest FALSE IMPRISONMENT. 12. ABUSE OF PROCESS often suggests a DEFAMATION issue. 13. Discuss the AFFIRMATIVE DEFENSES as separate issues. 14. For NEGLIGENCE, always discuss CONTRIBUTORY and COMPARATIVE

NEGLIGENCE. Also maybe ASSUMPTION OF THE RISK.

COMMON TORT ISSUES AND ANSWERS

FOLLOW THE CALL of the question. But if the call is general list the issues as follows: 1. ASSAULT? 47

Under tort law ASSAULT is an intentional act done to cause and that does cause reasonable apprehension of a battery, a harmful or offensive touching of the person. Important! [Every “intentional tort” has the element of INTENTIONAL ACT! Always DEFINE “intentional act” in the definition of the FIRST intentional tort issue as follows:] An INTENTIONAL ACT is one done for the purpose of causing or with knowledge with reasonable certainty that it will cause the result that produces injury. Important! [ALWAYS state this in your discussion of the first intentional tort. For TORTS an act is intentional if it is done for the PURPOSE of producing a RESULT, or if the actors knows that result will almost certainly occur! But the result does not necessarily have to be injury. All that matters is that the result CAUSES injury.] Here … because… Therefore, the defendant may be liable for tortious assault.

2. BATTERY? Under tort law BATTERY is an intentional act to cause and does cause a touching of the person of the plaintiff resulting in harm or offense to the plaintiff. 48 Important! Here … because… Therefore the defendant may be liable for battery.

47 Note that for “assault” and “battery” you can either call them “tortious assault” or “tortious battery” in the issue statement or else you can say “Under tort law…” in the rule. But somewhere you MUST make it clear you are talking about a tort and not a crime. 48 Note that the “intent” of the defendant must be to cause a touching, and the touching must cause harm or offense, but the intent of the defendant does not necessarily have to be to cause harm or offense.

Chapter 19: Answering Criminal Law Questions

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Chapter 19: Answering Criminal Law Questions Preliminary Considerations and Specific Rules:

1. Almost all crimes require a MENS REA, evil intent, and ACTUS REUS, evil act. The exceptions are the “strict liability” crimes of statutory rape, traffic offenses, and regulatory offenses. Those only require a criminal act and criminal intent is not required.

2. There must usually be COINCIDENCE, meaning that the criminal ACT must be done at

the SAME TIME there is criminal INTENT. An exception is that under the “relation back doctrine” a larceny may be found when a subsequently formed intent to steal is “related back” to a prior act of taking.

3. Criminal law essay questions are identified by the CALL which will ask about what acts

the defendant may be “prosecuted” for, for which “charges” may be brought, for which he may be “guilty”, etc.

4. The most common crimes tested are SOLICITATION, CONSPIRACY, ASSAULT,

BATTERY, BURGLARY, LARCENY, ROBBERY, MURDER, and MANSLAUGHTER.

5. There are some unusual crimes to remember (uttering, mayhem, compounding, etc.) but they are less likely to appear, and will be given less weight in grading.

6. If a question gives you a statute – read it very carefully because it determines the answer.

7. Your focus should usually be on WHAT CHARGES CAN BE PROSECUTED and

WHAT DEFENSES CAN BE RAISED and not on whether the defendant is “guilty”.

8. Some crimes are “lesser included offenses” of other more serious crimes. Defendants can be CHARGED with both the more serious crime and the lesser included offenses. If the defendant is CONVICTED of the more serious crime, the LESSER INCLUDED OFFENSES MERGE into that crime and the defendant cannot be separately convicted of the lessor included offenses. 88

9. On the FYLSX there will ALMOST ALWAYS BE A MURDER ISSUE.

88 For example every robbery includes a larceny, an assault and often a battery. The defendant can be CHARGED with four crimes: robbery, larceny, assault, and battery. But if the defendant is convicted of the robbery the other charges “merge” into that one crime.

Chapter 19: Answering Criminal Law Questions

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CRIMINAL LAW ISSUES AND ANSWERS FOLLOW THE CALL of the question. But if the call is general list the issues as follows:

1) SOLICITATION to commit [crime]?

Under CRIMINAL LAW a SOLICITATION is the crime of urging another person to commit a crime. 89 The crime of SOLICITATION is complete as soon as the urging takes place, whether the person urged commits the crime urged or not. But if the urged crime is committed the SOLICITATION MERGES into the criminal result and the person committing the solicitation becomes an ACCESSORY BEFORE THE FACT and VICARIOUSLY LIABLE for the crime based on accomplice theory. 90 Here A urge B to commit the crime of … because…Therefore, the defendant can be charged with solicitation to commit [crime].

2) CONSPIRACY to commit [crime or other illegal goal]? 91 Under COMMON LAW the crime of CONSPIRACY was an agreement between two or more people to work toward an illegal goal. MODERNLY an OVERT ACT in furtherance of the conspiracy goal is often required in many Courts. Further, under the PINKERTON RULE, a member of a conspiracy is VICARIOUSLY LIABLE for the criminal acts of co-conspirators done WITHIN THE SCOPE of the conspiracy goal. This means crimes that were 1) foreseeable and 2) in furtherance of the conspiracy goal. Even if the illegal goal of the conspiracy is attained, the CONSPIRACY DOES NOT MERGE into the criminal result, so each member can be convicted of both conspiracy and the other crimes committed during and within the scope of the conspiracy. [State the next paragraph if the conspiracy is to commit a crime that necessarily requires more than two people. Receiving stolen property is one of those crimes.] And under the WHARTON RULE a conspiracy requires the participation of more people than the minimum number necessary to commit the criminal act.

89 Note that the act urged must be a crime for which the person urged would be prosecuted. If Bevis urges 3-year old Butthead to steal some whisky for him it is not solicitation because Butthead is too young to form criminal attempt. In this odd situation the crime of Bevis is attempted larceny not solicitation. 90 For example: Bevis urges Butthead to rob a bank. If Butthead doesn’t rob the bank Bevis can only be charged with solicitation. But if Butthead does rob the bank at Bevis’ urging, Bevis can charged with BOTH solicitation and robbery. He would be VICARIOUSLY LIABLE for the robbery as an ACCOMPLICE (an ACCESSORY BEFORE THE FACT) based on accomplice theory. He cannot be convicted of both solicitation AND robbery because the solicitation is the reason he can be charged with the robbery. The solicitation would MERGE into the robbery as a lesser included offense. 91 Conspiracy is always a major issue if there are two or more defendants. It creates VICARIOUS LIABILITY for each conspiracy member based on conspiracy theory. If a member of a conspiracy takes an active party in pursuing the criminal goal they become an ACCOMPLICE and are VICARIOUSLY LIABLE base on BOTH conspiracy theory AND accomplice theory. The DEFENSE OF WITHDRAWAL is frequently tested.

Index

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Index

A Abuse of process, defined, tort, 88 Acceptance of offers, common law defined, 49, 121 Acceptance of offers, UCC 2-206, 50, 121 Acceptance with varying terms, UCC 2-207 defined, 50 Acceptances of offers, when effective, 51 Accessory before the fact, crimes, 99 Accommodation shipments, UCC 2-206, 50, 121, 141 Accomplice liability, defined, crimes, 109 Accord and satisfaction, defined, 60, 121 Actual cause, defined, 83 Actual malice, tort, defined, 86 Actus reus, defined, 97 Adequate provocation, defined, crimes, 107 Adhesion contracts, defined, 56 Admissions, writing exception, 52, 141 Affirmative defenses, defined, 121 Aggressors, defined, 78, 79, 112 Animals, dangerous, strict liability in negligence, 80 Animals, exotic, strict liability in negligence, 80 Anticipatory breach (repudiation), defined, 58 Arson, defined, crimes, 101, 199 Assault, criminal, defined, 100 Assault, tort, defined, 75 Assignment of contract, effective when, 61 Assumption of the risk, tort, 85, 174 Attempted assault, crimes, 16, 104 Attempted battery, crimes, 104 Attempted burglary, crimes, 105 Attempted murder, 105 Attempted receipt, defined, crimes, 104 Attempted robbery, defined, 189 Attempted solicitation, crimes, 104 Attractive Nuisance Doctrine, defined, 82 Authority defense, tort, crimes, 78, 112 Avoidable Injury Doctrine, tort, 85, 126

B Battery, criminal, defined, 100 Battery, tort, defined, 75 Benefit of the bargain, defined, 54 Bonus points on exams, 2 Bounty offers, 51 Breach of duty, tort, 82 Breach of express warranty, tort, 86 Breach of implied covenant, 59 Breach of implied warranty, tort, 86 Budgeting time on exams, v, 21 Burglary, defined, crimes, 103

C CALL of the question, 4, 48, 75, 99 Case-in-chief, prima facie case, 122, 124 Catalogue not an offer, 48 Causation, actual, 83 Causation, proximate cause, 84, 173 Causation, substantial factors, 84 Child’s standard of care, defined, negligence, 82 Coincidence of criminal act and intent, 97

Coming to the nuisance, defense, tort, 88, 186 Common Carrier Doctrine, crimes, theft of lost property as

embezzlement, 102 Comparative negligence, tort, 85 Compounding a felony, defined, crimes, 109 Concealment, contract fraud, 57 Concealment, tortious, 89 Conclusionary analysis, defined, 36 Condition concurrent, defined, 124 Condition precedent, defined, 124 Condition subsequent, defined, 125 Conflicts of law, 17 Consent defense, tort, 78 Consent, crimes defense, 111 Consequential damages, 63, 125 Consideration, defined, 55 Conspiracy liability, defined, 99 Conspiracy, defined, 194 Conspiracy, defined, crimes, 99 Constructive breaking, defined, 103, 189, 190 Constructive conditions, defined, 125 Contract offers, defined, 32, 48, 144, 148, 166 Contracts, common law remedies, 63 Contracts, frustration of purpose defense, 12, 58, 130, 149 Contracts, illegality ab initio, 57 Contracts, impossibility defense, 57 Contracts, modification under UCC, 52, 56, 60 Contracts, mutual mistake defense, 58 Contracts, ratification, 57 Contracts, unilateral mistake, effect of, 58, 127, 135, 142 Contributory negligence, tort, 84 Conversion, defined, tort, 76 Counting issues on exams, 5, 15 Crime prevention defense, tort, crimes, 78, 112 Criminal assault, defined, 100 Criminal battery, defined, 100 Criminal negligence, defined, 108 Cure, right of breaching seller, UCC, 64 Curtilage, burglary, crimes, 103, 123, 126

D Damages, consequential, 8, 23, 63, 125, 133 Deceit, tortious, 89 Defamation, defined, tort, 86 Defamation, matters of public concern, 86 Defense of authority, tort, crimes, 78, 112 Defense of crime prevention, tort, crimes, 78, 112 Defense of infancy, defined, crimes, 109, 131 Defense of others, reasonable appearances view, 79, 112 Defense of others, step-into-the-shoes view, 78, 112 Defense of others, tort, crime, 78, 112 Defense of property, defined, crimes, torts, 79 Defense, coming to the nuisance, tort, 88, 186 Defense, consent, tort, crime, 78, 111 Defense, legal impossibility, crimes, 104, 110, 129, 133, 134 Defense, private necessity, tort, crime, 78, 135, 136 Defense, public necessity, tort, crime, 78, 135, 137 Defense, recapture of chattel, tort, crime, 78 Defenses, duress, crimes, 111 Defenses, entrapment, crimes, 111 Defenses, factual impossibility, crimes, 110 Defenses, irresistible impulse, crimes, 111

NAILING THE BAR – How to Write Contracts, UCC, Torts and Crimes Law School and Bar Exams

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Defenses, mistake of fact, crimes, 109 Defenses, mistake of law, crimes, 110 Defenses, withdrawal, crimes, 110 Degrees of murder, defined, 105 Delegation of contract duties, effective when, 62 Depraved heart murder, 105, 128, 134, 195, 197, 203 Detrimental Reliance, defined, 65 Discipline defense, tort, crime, 77 Divisible contracts, UCC, 60 Duress defense, contracts, 56 Duress defense, crimes, 111 Duty based on peril, negligence, 81 Duty based on statute, negligence per se, 80 Duty of occupier of land, negligence, 81 Duty to mitigate damages, contracts, 63

E Egg-shell plaintiffs, tort, 84 Election, waiver of major breach, contracts, 59 Elsinore v. Kastorff, unilateral mistake, 58 Embezzlement, defined, crimes, 102 Entrapment, defined, crimes defense, 111 Enumerated felonies, first degree murder, 105 Enumerated means, first degree murder, 105 Equitable restitution, defined, 129

F Factual impossibility, crimes defense, 110 Failure of implied material condition, frustration of purpose,

58, 149 Failure of implied material condition, good faith, 59 Failure of implied material condition, impossibility, 57 Failure of implied material condition, meeting of the minds,

58 False imprisonment, defined, 76 False light, defined, tort, 87, 183 False pretenses, defined, crimes, 102 Felony Murder Rule, defined, crimes, 106 Fraud defense, contracts, 57 Fraud, tortious, 89 Frustration of purpose, contracts, 12, 58, 130, 149

G Gap fillers, UCC, 49, 135, 148, 167 General damages, defined, 77 General intent crimes, defined, 130 General offers, unilateral contracts, 49 Good faith, breach defined, 59 Grading Key for exams, 1, 2, 5, 14, 23 Grand larceny, defined, 101 Gross Negligence, defined, 130

H Hadley v. Baxendale, consequential damages, 63 Hazardous activities on land, tort, 136 Homicide, defined, 105, 190, 197 Human being, defined, crimes, 105

I IIED, defined, 76 Illegal contracts, 57 Implied covenants, 59 Implied material conditions, 54, 58, 59, 130, 131, 149, 159,

162 Implied ratification of contract, 57 Implied-in-Fact Contract, defined, 52 Implied-in-Law Contract, defined, 65, 130 Impossibility defense, contracts, 57 Impracticability defense, contracts, 58 In pari delicto, defined, 57 Incidental beneficiary, defined, 61 Incompetence defense, tort, 79 Incompetence, defense, contract, 57 Incompetents, contractual capacity, 57 Independent contractor, defined, 83 Infancy defense, crimes, 109, 131 Infancy defense, tort, 79 Inherently dangerous felonies, defined, 106 Insanity defense, tort, 79 Intentional act, defined, 75 Interference, defined, tort, 89 Intoxication defense, defined, 132 Intrusion, defined, tort, 87, 183 Invitees, defined, 81 Involuntary manslaughter, defined, 107 IRAC, defined, 1 Irresistible Impulse Rule, defined, crimes, 111 Issue Spotting, 7

J Joint enterprise liability, defined, 83

K Kidnapping, defined, crimes, 108

L Lack of capacity, contract defense, 57 Lapse of offers, 50 Larceny by trick, defined, 101 Larceny, defined, crimes, 101, 190 Last Clear Chance Doctrine, 84 Legal capacity to contract, 57 Legal impossibility, crimes defense, 104, 110, 129, 133, 134 Legal restitution, defined, 133 Libel, defined, 86 Licensees, defined, 81 Liquidated damages clauses, 12, 64, 133 Litigation rights, right to protect, 79

M Mailbox rules, 51 Major breach of contract, defined, 59 Malice for arson, defined, 101 Malice for murder, defined, 105 Malicious prosecution, tort, 88 Malum in se crimes, defined, 108 Material conditions, satisfaction, 53, 54

Index

209

Material conditions, timely performance, 53 Meeting of the minds, contracts, 58 Mens rea, defined, 97 Merchants, defined, 48 Minors, contractual capacity, 57 Mirror Image Rule, defined, 49, 121 Misappropriation of likeness, tort, 87 Misdemeanor manslaughter, 107, 108 Misprision, defined, crimes, 108 Misrepresentation, contract fraud, 57 Misrepresentation, tortious, 89 Mistake of fact, crimes defense, 109 Mistake of law, crimes defense, 110 Mitigating factors, crimes, 107 Modification of contracts, common law, 158 Modification of contracts, UCC, 52, 56, 60 Moral obligation, no consideration, 55 Murder, defined, crimes, 105 Mutual assent, 58, 135 Mutual mistake, contracts, 58

N Nailing the elements, v, 31 Negligence per se, defined, 80 Negligence, defined, tort, 32, 79 Negligent entrustment, defined, 83 Negligent Infliction of Emotional Distress, defined, 76, 85 New York Times v. Sullivan, defamation, 86, 127 NIED, defined, 85 Non-disclosure, tortious, 89 Non-issues, 14

O Objective Man Rule, 55 Offer acceptance, common law, 49, 121 Offers in jest, 55 Offers, lapse, 50 Offset, 63, 138, 160 Oral Conditions Precedent, defined, 46, 55, 136 Outrageous act, 76, 131, 169, 170 Overt act, 15, 125

P Paddling, defined, 38 Palsgraf, explained, 81 Parol evidence rule, defined, 54 Part performance, writing exception, 52, 141 Passive defenses, 136 Past acts, no consideration, 55 Peerless case, 58 Perfect Tender, 53 Perfect Tender Rule, UCC, 53, 60, 64, 136, 148, 150, 167 Petty larceny, defined, 101 Pinkerton Rule, 99 Pinkerton Rule, conspiracy liability, crimes, 99 Pre-existing duties, lack of consideration, 55, 158 Premises liability, tort, 81, 128, 136 Prevention of crime defense, tort, crimes, 78, 112 Prima facie case, 87, 89, 126, 172, 180 Private necessity, defense, tort, crime, 78, 135, 136 Private nuisance, defined, tort, 88, 185 Privileged statements, tort, 86

Privity of contract, 176, 178 Product liability, defined, 85 Promissory Estoppel, defined, 65 Property, defense of, crimes, torts, 79, 113 Proximate cause, defined, 84, 173 Public disclosure, defined, tort, 88, 184 Public eye, 181 Public figure, defined, defamation, 86 Public interest, 9, 44, 86, 122, 126, 130, 180, 182 Public necessity, defense, tort, crime, 78, 135, 137 Public nuisance, defined, tort, 88, 185 Publication, ii, 9, 122, 183, 184 Punitive Damages, 77

Q Quantum Meruit, 45, 137, 138, 157

R Rape, defined, crimes, 100 Ratification of contract, 57 Reasonable appearances view, defense of others, 79, 112 Reasonable apprehension, 75, 122, 169 Reasonable assurances, 59, 137 Reasonable reliance, 155, 159, 163, 187 Recapture of chattel, defense, tort, crime, 78 Receiving stolen property, defined, crimes, 104 Reckless disregard, 86, 121, 127, 181, 182 Reckless homicide, 107 Recklessness, 10, 77, 132, 138, 182 Recklessness, defined, 108, 138 Red herrings, avoiding, v, 14, 16 Redline Rule, defined, 108 Rejections of offers, when effective, 51 Relation Back Doctrine, theft of lost property, 101, 103 Required Issues, 1 Res gestae, defined, crimes, 106 Res ipsa loquitur, defined, 82 Rescuer Doctrine, 81 Respondeat superior, defined, 83 Restitution in tort, 89 Restitution, defined, 139 Revocation of general offers, 51 Revocation of unilateral contract offers, 51 Rewards, 7, 51 Robbery, defined, 103

S Sales of goods, need for writings, 7, 46, 52, 56, 60, 140,

141, 147, 165 Sales of intangible rights, need for writing, 41, 47, 141 Salvage sales, UCC, 64 Satisfactory performance, material conditions, 53, 54 Saving Doctrines, 51 Self-defense, defined, tort, crime, 78, 79, 112 Slander per se, defined, 86 Slander, defined, 86 Solicitation, defined, crimes, 99 Special damages, defined, 77 Special made goods, writing exception, 52, 141 Specific intent crimes, defined, 139 Specific performance, 63, 64, 65, 66 Splits in law, 17

NAILING THE BAR – How to Write Contracts, UCC, Torts and Crimes Law School and Bar Exams

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Standard of care, torts, 82 Statute of Frauds, need for writings, 52, 144, 158, 161 Step-into-the-shoes view, defense of others, 78, 112 Strict liability in tort, 80 Substantial factor, defined, 84 Substantial performance, defined, 140 Substantial step, attempted crimes, 15, 104

T Third-party beneficiary, defined, 61 Timely performance, material conditions, 53 Tortious assault, defined, 75 Tortious battery, defined, 75 Tortious fraud, 89 Tortious interference, defined, 89 Transferred intent, none in criminal law, 141 Transferred intent, torts, 77, 170 Trespass to chattel, defined, 77 Trespass to land, defined, 76 Trespassers, duty of occupier of land, 81, 136 Trespassory conversion, embezzlement, 102 Trespassory entry, defined, crimes, 103

U UCC 1-206, need for writings, 141 UCC 2-201, need for writings, 141 UCC 2-205, firm offers, 141 UCC 2-206, acceptance means, 141 UCC 2-207, acceptance with varying terms, 141 UCC 2-209, contract modification, 52, 56, 60 UCC 3-311, accord and satisfaction, 9, 47, 60, 121, 142 UCC Article 2, application, 48 UCC remedies, cure by breaching seller, 64

UCC, salvage sales, 64 Ultra-hazardous activities, strict liability in tort, 80 Ultra-hazardous activities, tort, 80, 140 Unconscionable contracts, 56 Unforeseeable intervening event, defined, 84, 173 Unilateral contract offers, defined, 18, 49 Unilateral mistake, contracts, 58, 127, 135, 142 Unreasonably dangerous product, defined, 85

V Vicarious liability, 83, 99, 100, 109, 111, 121, 125, 192 Voluntary intoxication, crimes, 109, 130, 134, 137, 139, 142 Voluntary manslaughter, defined, crimes, 107

W Waiver of breach, election, contracts, 59 Waiver of condition, contracts, 60 Waiver of condition, retraction, 60 Waiving a tort, explained, 89 Wharton Rule, defined, crimes, 99 Withdrawal defense, crimes, 110 Writing exceptions, UCC, 52, 141

Y Yellow brick road exam approach, 37

Z Zone of danger, defined, 81, 172

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